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TMI Blog2018 (6) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... tance to the claim of the petitioner in this application. The petitioning creditor is entitled to the sum of ₹ 15,24,295.00/-, together with interest at the rate of 9%, per annum from May 15, 2015 till realisation. The winding up application shall be advertised once in the English newspaper, “The Statesman” and once in the Bengali newspaper, “Bartaman” by May 10, 2018. - C.P. 846 OF 2015 - - - Dated:- 30-4-2018 - Mr. Ashis Kumar Chakraborty, J. For The Petitioner : Mr. Amitesh Banerjee, Sr. Advocate Ms. Manju Bhuteria, Advocate And Ms. Ruma Das, Advocate Mr. A.P. Agarwala, Advocate For The company : Mr. Joy Saha, Sr. Advocate Ms. Ankita Ganguly, Advocate And Mr. Dipankar Das, Advocate JUDGMENT Ashis Kumar Chakraborty, J. In this application, the petitioner has prayed for winding up of the respondent company. The petitioner claims that the company is controlled by its principal director, Naresh Narayan Kohli and his son Varun Roshan Kohli is the sole proprietor of M/s. Kohl Bro. International (hereinafter referred to as the said firm ). The company and the firm have been in the business, inter alia, of importing walkie talkies ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 31, 2014 at ₹ 15,00,000/- and ₹ 5,00,000/-, respectively. c) the company would pay the aggregate amount of ₹ 20 lacs to the petitioner on behalf of itself and the firm in the following manner: i) the company would pay ₹ 1.50 lakhs at the time of execution of the agreement; ii) from the month of October, 2014 and upto the month of May, 2015 company would pay the monthly instalments of ₹ 1,00,000/-, each and the last instalment of ₹ 10.50 lacs would be paid within June 15, 2015. d) The petitioner would agree to the adjournment of the criminal proceedings initiated against the company, the directors and the proprietor of the firm under Section 138 of the N.I. Act, keep the criminal proceedings initiated against the directors of the company and the proprietor of the firm in abeyance and defer the winding up application against the company. e) In default of payment any of above instalments by the company the entire amount of ₹ 17,59,128/- and ₹ 6,15,167/- aggregating to ₹ 23,75,295/- would forthwith become due and payable by the company to the petitioner with panel charges on the amount then remaining due at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the banker of the company have also been disclosed in the application. In the meantime, by a letter dated May 06, 2015 the company alleged that ₹ 61,176.26/- is payable to itself by the petitioner. By a letter dated May 07, 2015 addressed to the company the petitioner denied any liability to make any payment to the company. According to the petitioner, in view of the dishonour of the said two cheques dated May 15, 2015 and June 15, 2015 issued by the company, as per clause 9 of the said memorandum of settlement, the concession granted by the petitioner to the company for ₹ 3,74,295/- stood revoked and after giving credit ₹ 8.50 lakhs paid by the company, a sum of ₹ 15,24,295/- (being the aggregate of ₹ 3,74,295/-, ₹ 10,50,000/- and ₹ 1,00,000/-) together with interest, at the rate of 2% per month compoundable on monthly basis is payable by the company to the petitioner. By a notice dated July 03, 2015 issued under Section 434 of the Act of 1956, the petitioner through its advocate called upon the company to pay ₹ 15,24,295/- with the rate of interest as agreed in the said memorandum of settlement. The company received the said n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After payment of the said sum of ₹ 8.50 lakhs to the petitioner the company has been advised to file a civil suit claiming the aforementioned reliefs in respect of the said memorandum of settlement. In paragraph 3(W) of its affidavit the company alleged that out of the balance amount of ₹ 11,81,379/- in between September 25, 2014 and April 23, 2015, it paid ₹ 8.50 lakhs to the petitioner as stated in paragraph 13 of the petition and it further paid the balance amount of ₹ 3,31,379/- to the petitioner in cash. The company further alleged that without the details of the High Seas Sale Agreements between the petitioner and the company and those between the petitioner and the firm and the total value of transaction between the petitioner on the one hand and the company and the firm, respectively on the other hand or the particulars of total payment made by the company and the firm to the petitioner, the present winding up application filed by the petitioner on the basis of the memorandum of settlement dated September 25, 2014 is not maintainable. In its affidavit-in-reply the petitioner denied the allegations of the company in its affidavit-in-opposition and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25, 2014 in between April 23, 2015 and May 23, 2015 deposited a sum of ₹ 1 lakh in the bank account of the petitioner through NEFT. In this regard, the learned counsel for the petitioner referred to the statutory notice dated July 03, 2015 issued by the petitioner to the company. According to the petitioner, in the statutory notice dated July 03, 2015 the petitioner stated all the above facts and claimed the payment of the principal amount of ₹ 15,25,295/- together with interest and in spite of receipt of the same, the company chose not to reply to the said notice disputing any statement made therein. In these facts, according to the petitioner, the allegation made by the company that the said memorandum of settlement is vitiated by any fraud or coercion or undue influence or that the said memorandum of understanding is not binding upon the company or that the latter paid ₹ 8.5 lakhs to the petitioner independent of the said memorandum of settlement or that after payment of ₹ 8.5 lakhs the company owes no money to the petitioner are all afterthoughts and devoid of any merit. Mr. Joy Saha, learned senior advocate on behalf of the company reiterated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 128/- and ₹ 6,15,167/- aggregating to ₹ 23,74,295/- shall become due and payable by the company to the petitioner and that the company and the guarantor shall also liable to pay panel charges on the amount then remaining outstanding at the rate of 2% per month compoundable on monthly basis and the petitioner shall be entitled to proceed with the proceeding under Section 138 of the Negotiable Instruments Act and the Hare Street P.S. Case No. 269 dated April 26, 2014 and to file the proceeding for winding up of the company. Indisputably, as recorded in the said memorandum of settlement by a demand draft, bearing no. 877508 dated September 25, 2014 drawn on State Bank of India, the company paid ₹ 1.50 lakhs to the petitioner. As recorded in the schedule to the said memorandum of settlement dated September 25, 2014 the company also issued eight post dated cheques, bearing nos. 892216, 892217, 892218, 892219,892220, 892221, 892222, 892223 dated October 15, 2014, November 15, 2014, December 15, 2014, January 15, 2015, February 15, 2015, March 15, 2015, April 15, 2015 and May 15, 2015 drawn on State of Bank of India of ₹ 1,00,000/- each to the petitioner. The compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es by the company in terms of its obligation under the memorandum of settlement as well as the dishonour of the post dated cheques dated May 15, 2015 and June 15, 2015 resulting in failure of the company to fulfil its obligation to pay ₹ 20,00,000/- under the memorandum of settlement within June 15, 2015. Once again the company did not reply to the said statutory notice disputing the contents thereof. In the present case, the company did not issue any correspondence to the petitioner disputing either the payment of ₹ 1.50 lakhs by the demand draft dated September 25, 2014 or the issuance of the 9 post dated cheques in discharge of its obligation under the said memorandum of settlement. There is absence of any contemporaneous document from the side of the company alleging that it did not issue the 9 post dated cheques to the petitioner in terms of the said memorandum of settlement or that it had paid ₹ 8.50 lakhs independent of the said memorandum of understanding. Even in the affidavit in opposition filed by the company there is no pleading that it did not pay ₹ 8.50 lakhs to the petitioner under the said memorandum of settlement dated September 25, 2014. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hu Wollen Industries Pvt. Ltd. reported in AIR 1971 SC 2600, the Court can refuse a petition for winding up of the company when the claim of the petitioner is bona fide disputed by the company. In other words, in the first place when the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly, the company adduces prima facie proof of the facts on which the defence depends, the Court should refuse to admit the winding up application against the company. Considering the facts of the present case as discussed above, I am unable to convince myself to hold that the company has been able to either make out any bona fide defence to the claim of the petitioner or that it has adduced any prima facie proof of facts on which it based its defence in the affidavit-inopposition to the claim of the petitioner for ₹ 15,24,295.00. Lastly, when the company has all along made payments to the petitioner in terms of the said memorandum of settlement dated September 25, 2014 its belated denial of the validity of the said terms of settlement can hardly be accepted as a defence of any substance to the claim of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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